1. Slides developed by Les Wiletzky Wiletzky and Associates Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International and Comparative Law

2. 39 - 2Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International Law (1 of 2) Law that governs affairs between nations Law that regulates transactions between individuals and businesses of different countries No single legislative source of international law All countries of the world (and numerous international organizations) are responsible for enacting international laws

3. 39 - 3Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International Law (2 of 2) No single world court responsible for interpreting international law Several courts or tribunals hear and decide international legal disputes of parties that agree to appear before them No world executive branch that can enforce international laws Nations do not have to obey international law enacted by other countries or international organizations

4. 39 - 4Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. The United States and Foreign Affairs (1 of 3) The Constitution gives the federal government most of the power to deal with foreign affairs of this country: Foreign Commerce Clause Foreign Commerce Clause – Article I, Section 8, clause 3 vests Congress with the power “to regulate commerce with foreign nations.” Treaty Clause Treaty Clause – Article II, Section 2, clause 2 states that the president “shall have power, by and with advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.”

5. 39 - 5Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. The United States and Foreign Affairs (2 of 3) Foreign Commerce Clause Any state or local law that unduly burdens foreign commerce is unconstitutional under the Foreign Commerce Clause The president is the agent of the United States in dealing with foreign countries

6. 39 - 6Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. The United States and Foreign Affairs (3 of 3) Treaty Clause Under the Treaty Clause, only the federal government may enter into treaties with foreign nations Supremacy Clause Under the Supremacy Clause of the Constitution: Treaties become part of the “law of the land” Conflicting state or local law is void

7. 39 - 7Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Sources of International Law Sources of international law Sources of international law – those things that international tribunals rely on in deciding international disputes Article 38(1) of the Statute of the International Court of Justice Article 38(1) of the Statute of the International Court of Justice lists four sources of international law: Treaties and conventions Custom General principles of law Judicial decisions and teachings Sources of international law Sources of international law – those things that international tribunals rely on in deciding international disputes Article 38(1) of the Statute of the International Court of Justice Article 38(1) of the Statute of the International Court of Justice lists four sources of international law: Treaties and conventions Custom General principles of law Judicial decisions and teachings

8. 39 - 8Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Treaties and Conventions Treaties The first source of international law Agreements or contracts between two or more nations that are formally signed by an authorized representative and ratified by the supreme power of each nationTreaties The first source of international law Agreements or contracts between two or more nations that are formally signed by an authorized representative and ratified by the supreme power of each nationConvention Treaty that is sponsored by an international organization e.g., United Nations Conventions normally have many signatoriesConvention Treaty that is sponsored by an international organization e.g., United Nations Conventions normally have many signatories

9. 39 - 9Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Custom (1 of 2) The second source of international law Custom describes consistent, recurring practices followed by two or more nations when dealing with each other over a period of time that have become recognized as binding Customs that have been recognized for some period of time are often codified in treaties

10. 39 - 10Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Custom (2 of 2) Two elements must be established to show that a practice has become a custom: 1.Consistent and recurring action by two or more nations over a considerable period of time 2.Recognition that the custom is binding because of legal obligation

11. 39 - 11Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. General Principles of Law (1 of 2) The third source of international law principles of law Consist of principles of law recognized by civilized nations national law These are principles of law that are common to the national law of the parties to the dispute

12. 39 - 12Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. General Principles of Law (2 of 2) The general principles of law may be derived from: Constitutions Statutes Regulations Common Law Other Sources of National Law

13. 39 - 13Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Judicial Decisions and Teachings The fourth source of international law judicial decisions and teachings Consist of judicial decisions and teachings of the most qualified legal scholars of the various nations involved in the dispute stare decisis International courts are not bound by the doctrine of stare decisis

14. 39 - 14Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. The United Nations (UN) International organization created by multinational treaty in 1945 Goals of the United Nations (U.N.): Maintain peace and security in the world Promote economic and social cooperation Protect human rights

15. 39 - 15Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Governance of the United Nations (1 of 3) The United Nations is governed by: The General Assembly The General Assembly Composed of all member nations The legislative body of the U.N. Adopts resolutions which have limited force Resolutions are usually enforced through persuasion and sanctions

16. 39 - 16Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Governance of the United Nations (2 of 3) The Security Council The Security Council Composed of 15 member nations Five are permanent members Ten are chosen for two-year terms Primarily responsible for maintaining international peace and security Has authority to use armed forces

17. 39 - 17Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Governance of the United Nations (3 of 3) The Secretariat The Secretariat Administers the day-to-day operations of the United Nations Secretary-General Headed by the Secretary-General, who is elected by the General Assembly The Secretary-General may refer matters that threaten international peace and Security to the Security Council and use his office to help solve international disputes

18. 39 - 18Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International Court of Justice The judicial branch of the United Nations World Court Also called the World Court Located in The Hague, the Netherlands Only nations (not individuals or businesses) may have cases decided by this court A nation may seek redress on behalf of an individual or a business that has a claim against another country

19. 39 - 19Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. UN Agencies The U.N. is also composed of various autonomous agencies that deal with a wide range of economic and social problems: UNESCO UNICEF IMF World Bank International Monetary Fund IFAD

20. 39 - 20Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Regional International Organizations (1 of 6) The European Union (EU) Comprises many countries of Western and Eastern Europe Created to promote Peace and security Economic, social, and cultural development

21. 39 - 21Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Regional International Organizations (2 of 6) The European Union (EU) The European Union (EU) (continued) The EU treaty creates open borders for trade between members The EURO is the single monetary unit European Court of Justice – the judicial branch of the EU European Court of First Instance (CFI)

22. 39 - 22Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Regional International Organizations (3 of 6) The North American Free Trade Agreement (NAFTA) An international treaty that creates a regional free-trade zone consisting of the United States, Canada, and Mexico Eliminates or reduces most of the duties, tariffs, quotas, and other trade barriers between the members

23. 39 - 23Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Regional International Organizations (4 of 6) Latin, Central, and South American Economic Communities Central American Common Market MERCOSUR Common Market Caribbean Community Andean Common Market

24. 39 - 24Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Regional International Organizations (5 of 6) African Economic Communities Economic Community of West African States Economic and Customs Union of Central Africa East African Community Organization of African Unity African Economic Community

25. 39 - 25Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Regional International Organizations (6 of 6) Asian Economic Communities Association of South East Asian Nations (ASEAN) Middle Eastern Economic Communities Organization of Petroleum Exporting Countries (OPEC) Gulf Cooperation Council

26. 39 - 26Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. World Trade Organization (WTO) International organization of more than 130 member nations Created to promote and enforce trade agreements among member nations WTO members have entered into many trade agreements among themselves By enforcing trade agreements among its members, the WTO has become the world’s most important trade organization

27. 39 - 27Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. WTO Dispute Resolution One of the primary functions of the WTO is to hear and decide trade disputes between member nations Panel Dispute Settlement Body Appellate Body Panel Dispute Settlement Body Appellate Body

28. 39 - 28Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. The International Criminal Court (ICC) Rome Treaty Created by the Rome Treaty of 1998 The ICC has the authority to prosecute individuals accused of genocide, war crimes, and crimes against humanity The ICC may prosecute nationals located in the over 100 countries that have ratified the treaty The ICC has complementary jurisdiction with the national courts of a country

29. 39 - 29Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. National Courts Decide International Disputes (1 of 3) national courts The majority of commercial litigation involving international business transactions are heard by national courts of individual nations Judicial Procedure Judicial Procedure Choice of forum clause Choice of forum clause – designates the judicial or arbitral forum that hear and decide the case Choice of law clause Choice of law clause – designates the law to be applied by the court or arbitrator in deciding the case

30. 39 - 30Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. National Courts Decide International Disputes (2 of 3) Act of State Doctrine Act of State Doctrine Judges of one country cannot question the validity of an act committed by another country within that other country’s borders Based on the principle that a country has absolute authority over what transpires within its own territory

31. 39 - 31Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. National Courts Decide International Disputes (3 of 3) The Doctrine of Sovereign Immunity The Doctrine of Sovereign Immunity A doctrine that states that countries are granted immunity from suits in courts of other countries Foreign Sovereign Immunities Act Foreign Sovereign Immunities Act – exclusively governs suits against foreign nations that are brought in federal or state courts in the United States

32. 39 - 32Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International Arbitration (1 of 2) Arbitration Arbitration A non-judicial method of dispute resolution A neutral third party decides the case The parties agree to be bound by the arbitrator’s decision Faster, less expensive, less formal, and more private than litigation

33. 39 - 33Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International Arbitration (2 of 2) Arbitration Clause Arbitration Clause A clause contained in many international contracts Stipulates that any dispute between the parties concerning the performance of the contract will be submitted to an arbitrator or arbitration panel for resolution

34. 39 - 34Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International Law Jewish Law and the Torah Islamic Law and the Koran Hindu Law – Dharmasastra Jewish Law and the Torah Islamic Law and the Koran Hindu Law – Dharmasastra